My op-ed piece, criticizing CBS’ “Brooklyn DA,” as one-sided journalism and a poor precedent that bodes ill for fair elections, appears in today’s opinion section of the New York Daily News. “Brooklyn D.A.” is a six-part series running on the office of Brooklyn D.A. Charles Hynes as he seeks re-election to a seventh term. Two challengers are seeking to oust him. The series runs weekly on primetime (10 p.m. Tuesdays) from May 28 to July 2. The Democratic primary in Brooklyn, where Democrats outnumber Republicans 8-to-1, will be held on Sept. 10. Click here for the op-ed.
SIGN UP AS A SUBSCRIBER OF MY STORIES (they are free). FOLLOW THE PROMPTS IN THE UPPER RIGHT HAND CORNER OF MY HOME PAGE. BE SURE TO RESPOND TO THE E-MAIL FROM WORDPRESS ASKING FOR CONFIRMATION.
After a daylong seesaw legal battle, CBS’ ‘Brooklyn DA’ will air as scheduled on Tuesday evening at 10 p.m.
Justice Paul Wooten, after approximately two hours of testimony from two senior producers at CBS, had heard enough. After taking a short break, Wooten returned to the bench and denied a motion seeking to defer the start of the six-week series on Hynes and his office until after the Democratic primary on Sept. 10. In a brief oral statement, Wooten said that there was not enough evidence for him to conclude that there was a reasonable likelihood of success on the motion to preliminarily enjoin the series.
At a court conference a day earlier, Wooten had said that the hearing might extend to Tuesday, the day the show was set to be aired.
Sonya McNair, a spokesperson for CBS News, issued a statement, saying, “We are pleased with today’s decision and look forward to bringing viewers the compelling documentary series ‘Brooklyn DA.”
Aaron M. Rubin, the attorney for Abraham George who is seeking to challenge Brooklyn’s six-term District Attorney Charles J. Hynes in the September primary, said his client is weighing his options.
No subpoenas were required for the testimony of the two CBS producers—Susan Zirinsky and Patti Aronofsky. But, court ordered subpoenas were necessary to compel the testimony of the three persons at the District Attorney’s Office who had direct dealings with Zirinsky and Aronofsky: Hynes, Michael Vecchione, the chief of the rackets bureau, and Jerry Schmetterer, Hynes’ director of communication. Apparently through a mix up, the subpoenas were never signed.
Wooten had pointed out, during arguments Thursday over the scheduling of the hearing that Hynes had never been served in his capacity as District Attorney. As a consequence, in the absence of a court-ordered subpoena, neither Hynes nor his subordinates could be compelled to testify.
Also, during arguments on Thursday, David Schulz, of Levine Sullivan Koch & Schulz, who represented CBS, had said that Wooten’s order requiring CBS to make available all email correspondence between CBS and Hynes office could well entail the office’s examining “thousands and thousands” of emails to determine if they were exempt from disclosure because of the reporters’ privilege. Only a tiny fraction—15 pages—were delivered to Rubin prior to the start of the hearing, with CBS apparently claiming privilege to the balance.
On Friday morning, First Department Justice Angela M. Mazzarelli denied CBS’ motion to stay Wooten’s order for the hearing.
In asking that the series be enjoined, George claimed that the show would be an “infomercial ” for Hynes and the series’ six hours of free airtime should be treated as an in-kind contribution to his campaign. Under state law, corporations are limited to donations of $5,000. But the U.S. Supreme Court’s 2010 ruling Citizens United v. FCC, 558 U.S. 310 permits corporations to buy unlimited amounts of airtime boosting a candidate as long as the ad buys are “independent” of the candidate’s campaign.
This afternoon’s hearing focused upon whether the CBS series was produced independently of the Hynes’ campaign.
—Hella Winston, an investigative reporter who has done extensive work for the NY Jewish Week, assisted in the reporting of this article.
An appeals judge in Manhattan this morning rebuffed CBS’ bid to block a hearing into how much control the Brooklyn District Attorney’s Office exercised over CBS’ production of a six-episode series on the office, called “Brooklyn DA.”
The hearing started this afternoon at 2 p.m. as ordered late yesterday by Justice Paul Wooten, who sits in Manhattan. Judge Wooten also required CBS to produce all email correspondence it had with the Brooklyn office relating to the production of the series. It is expected that two of CBS senior producers in charge of the show—Susan Zirinsky and Patti Aronofsky will testify. Click here to read yesterday’s article about Wooten’s order for a hearing and discovery.
Justice Angela Mazzarelli denied CBS request for a stay of the hearing, telling the parties that Wooten had not issued an appealable order.
CBS’ lawyer, David A. Schulz, objected strenuously to Mazzarelli’s refusal to intervene saying that CBS is being “threatened with the possibility that an important news show may be enjoined” and “we may be forced to ignore a court order or have our constitutional rights violated.”
CBS added to its legal firepower at the Appellate Division yesterday, bringing aboard Israel Rubin, a former justice of that court. Rubin handled part of the argument and pointed out to Mazzarelli that Wooten had sought to challenge Hynes in 2005. Wooten, however, dropped out prior to the primary.
The case before Wooten was brought by one of Hynes’ challengers, Abraham George, a former prosecutor in the Manhattan District Attorney’s Office. George claims that the show will be an “infomercial ” for Hynes and the series’ six hours of free airtime should be treated as an in-kind contribution to Hynes’ campaign. Under state law, corporations are limited to donations of $5,000. But the U.S Supreme Court’s 2010 ruling Citizens United v. FCC, 558 U.S. 310 permits corporations to buy unlimited amounts of airtime boosting a candidate as long as the ad buys are “independent” of the candidate’s campaign.
This afternoon’s hearing, which is expected to continue on Tuesday, May 28, is examining whether the CBS series was produced independently of the Hynes campaign. In an affidavit filed in the case last week, Hynes’ chief press officer, Jerry Schmetterer, disclosed that he and Michael Vecchione, the chief of the office’s rackets division, agreed to guidelines for the production of the series after “much discussion” with Aronofsky and Zirinsky, senior producers at CBS.
The first of four guidelines listed by Schmeltzer states that CBS has full editorial control and the DA’s office none “whatsoever.”
From comments Wooten made at yesterday afternoon’s court conference, it appears that he wants to give George and his attorney, Aaron M. Rubin, an opportunity to test that proposition. Wooten defined the issues before him as relating to “production, promotion” of the series.
Other remarks Wooten made at yesterday’s conference, according to a court transcript, send different signals as to how he views the hearing. At one moment he emphasized that, in ordering the hearing, he was trying to protect the record on appeal, and at another he indicated that the issue was serious enough that he might delay the start of the series for a week if Schulz needed more time to prepare for the hearing.
Other Questions Raised about Control
Meanwhile, other issues have surfaced in the last two weeks, which raise further questions about the extent of the Brooklyn office’s involvement in the production of the show.
A week ago, the office came under fire from a well-known criminal defense lawyer, Gerald L. Shargel, who accused the office of a “shocking” breach of ethics rules regulating pretrial publicity in a case he is handling. In a letter to the judge presiding over the arson case, in which five persons in a Bensonhurst tenement died, Shargel asserted that prosecutors met with, and “prep[ped],” witnesses. In the May 15 letter, Shargel advised Acting Justice Danny K. Chun that he found out about the filming when producers of the series contacted him about their work on the series, and that the account had been confirmed by the lead prosecutor on the case, Assistant District Attorney Lawrence Oh. That conversation was recorded, Shargel stated. Click here to read the Shargel letter.
The Brooklyn office beat a hasty retreat at a court conference the next day. Oh informed Chun that CBS had decided not air any material about the arson case, making the issue moot. That scenario raises a question as to whether CBS or Hynes’ office made the decision not to include any reference to Shargel’s case. Shargel’s charges of violations of the New York Rules of Professional Conduct were aimed solely at the District Attorney’s Office, not CBS.
The Shargel letter also undercut one of the ground rules that Schmetterer listed in his affidavit.
That guideline stipulates that the Brooklyn office would not “assist in arranging any interviews with witnesses.” How does that account square with Shargel’s assertion that CBS crews filmed prosecutors meeting with witnesses. How did CBS know about the interview sessions? Were they held in the District Attorney’s offices? How did CBS know when and where the interviews would take place?
Shargel’s account may not be accurate, but the fact that he claims to have ADA Oh’s confirmation on tape gives it credibility.
No response was received to requests for comment direct to both to the District Attorney’s Office and and Hynes’ campaign.
Schmetterers’ affidavit offers other examples of extraordinary access being provided to CBS. Its reporters are being allowed into prosecutors’ homes because the series’ “concept” is to provide the public with a full picture of who the prosecutors are, both inside and outside the workplace, Schmetterer explained in the affidavit. Normally, the home addresses of prosecutors are closely guarded secrets to insure that prosecutors and their families are shielded from harm, and CBS has promised to protect that information.
Also according to the affidavit, the office afforded CBS access to an undercover sting operation that resulted in the arrest of a house painter for the theft of a Picasso and other artwork from an estate in Kings Point, L.I. In a promo for the series, released by CBS yesterday, Oh, who apparently is the lead prosecutor, is shown stating that we are planning a sting and “somewhat close to a take down.” There is a shot of a tiny camera being held in someone’s hand and a shots of someone with a screwdriver. It is unclear whether the visuals show the actual installment of the device or are a staged re-enactment.
—Hella Winston, an investigative reporter who has done extensive work for the NY Jewish Week, assisted in the reporting of this article.
Late this afternoon, Justice Paul Wooten, sitting in Manhattan Supreme Court, ordered a hearing to explore the genesis of CBS’ six-episode series “Brooklyn DA,” which is scheduled to start airing on Tuesday.
The ruling comes in a lawsuit filed by Abraham George, one of two challengers seeking to deny Brooklyn District Attorney Charles J. Hynes’ a seventh term. According to a transcript of a court conference that ended at about 6 p.m., Wooten told the parties that he was ordering CBS to produce all e-mail correspondence between it and Hynes office concerning the series by 11 o’clock tomorrow morning, if possible (Friday, May 24). He also said that he was prepared to sign subpoenas “as urgently as possible” requiring two senior CBS producers in charge of the series to testify at a hearing beginning a 2 p.m.
George’s attorney, Aaron M. Rubin, has also requested that Michel Vecchione, the chief of the district attorney’s rackets division be required to testify. According to an affidavit filed by Jerry Schmetterer, Hynes chief press officer, he and Vecchione negotiated ground rules for the production of the show with Patti Aronofsky, the series’ senior supervising producer.
David Schulz, the lawyer representing CBS, said that he would appeal Wooten’s order, but Wooten denied Schultz’ for a stay of the order requiring a hearing until he is able to request one from the Appellate Division, First Department.
George claims that the show will be an “infomercial ” for Hynes and the series’ six hours of free airtime should be treated as an in-kind contribution to Hynes’ campaign. Under state law, corporations are limited to donations of $5,000. But the U.S Supreme Court’s Citizens United ruling permits corporations to buy unlimited amounts of airtime boosting a candidate as long as the ad buys are “independent” of the candidate’s campaign.
The last episode of the show will air on July 2. A likely three way Democratic primary will take place on Sept. 11. The third candidate in the race will be Kenneth P. Thompson, a former federal prosecutor in Brooklyn. George formerly was a prosecutor in the Manhattan District Attorney’s Office.
According to the Schmetterer affidavit, CBS has maintained complete editorial control over the series.
George Arzt, a spokesman for the Hynes campaign, told the Daily News that Wooten is “just going through due diligence,” adding “We are optimistic about a positive outcome.”
Caroline Kennedy, who has been widely reported as being in line for President Barack Obama’s nomination as ambassador to Japan, has brought her attorney registration current, according to the New York State Office of Court Administration’s (OCA) Web site.
On April 2, I had reported that OCA’s attorney directory listed Kennedy as having let her registration lapse. Click here for story.
The 166,000 attorneys practicing in New York State are required to re-register every two years and pay a $375 fee. David Bookstaver, the spokesman for New York’s court system confirmed that Kennedy has brought her registration current with the payment of $750 covering the two registration periods that had passed since she last registered in December 2008.
Attorneys are required to re-register within 30 days of their birthdays. Kennedy’s registration is now listed as current through November 2014.
The President’s nominations of ambassadors are subject to Senate confirmation.
A former federal judge, now a champion of crime victims’ rights, last week called for a U.S. House of Representatives panel to ask the U.S. Attorney’s Office in Brooklyn to explain why it “appears” to be engaging in “on-going violations of important federal crime victims’ statutes.”
In written testimony delivered to a unit of the House Judiciary Committee, former U.S. Judge Paul G. Cassell, a professor at the University of Utah Law School, cited the Eastern District’s handling of cooperator Felix Sater’s guilty plea to having committed a $40 million stock swindle in 1998 as a prime example of why the enactment of a constitutional amendment protecting victims’ rights is necessary.
“Sadly,” he wrote, it is “my conclusion” that the Eastern District’s handling of the case, and judge’s granting of its request to shroud the plea in secrecy, “is hindering the public and this Subcommittee from learning how crime victims were treated in this case.” The testimony was submitted to the Judiciary’s Subcommittee on Constitutional law.
Cassell further wrote that the office’s “willingness to ignore” federal crime victims’ statutes has a “business as usual feel to it, suggesting that many other victims are having their rights violated through the simple expedient of hiding the case.” Click here for Cassell’s testimony
Robert Nardozo, a spokesman for the U.S. Attorney’s Office, said it would have no comment.
Sater’s 2009 guilty plea remained under seal until mid-March when Eastern District Judge I. Leo Glasser, who presided over Sater’s criminal case, ordered it to be made public. Click here to read story in New York Law Journal.
The newly available plea made indisputable what was already widely known. Sater had been rewarded for his 11 years of cooperation with a lenient sentence—five years probation and a $25,000 fine. More significantly for Cassell, the sentence made no reference to restitution. Federal statutes entitle victims of stock fraud to mandatory restitution and the right to notice of, and to participate in, sentencing proceedings. Neither occurred when Sater was sentenced, according to the now public court records.
Cassell submitted his statement in response to a written request from the Constitution subcommittee’s chairman, Trent Franks (R-Arizona). In 2011, Cassell worked pro bono on the restitution section of a brief that Oberlander filed in the Second Circuit. He has not performed any legal work for Oberlander since, said Richard Lerner, Oberlander’s attorney.
The secrecy surrounding the Sater’s plea had been hotly contested by Long Island lawyer Frederick M. Oberlander, who in 2010 filed a derivative action in the Southern District of New York, claiming that Sater had used the secrecy afforded by the court’s secrecy regimen to perpetuate a $500 million real estate fraud.
That lawsuit, Kriss et al. v. Bayrock Group, 10-cv-3959, alleges that Sater used court-approved secrecy to hide his criminal past from investors in a real estate company he became associated with, the Bayrock Group. Bayrock entered into projects, using Donald Trump’s name, in Fort Lauderdale and SoHo. Sater’s role in Bayrock Group is somewhat murky though the Miami Herald last summer reported that he was “a high executive.”
The filing of the Kriss lawsuit, which accused Sater and Bayrock of engaging in a civil racketeering fraud, stirred up a hornet’s nest. The complaint, which was ordered sealed within four days, contained excerpts from Sater’s pre-sentencing report. According to Oberlander’s papers filed in the U.S. Supreme Court, those portions of the report showed that Sater’s probation officer avoided alerting Bayrock about Sater’s criminal past.
Presentence reports are non-public documents and are not included in the federal court’s system for making case files available to the public on the Internet.
Glasser, acting on an application from Sater’s lawyers, enjoined Oberlander and Lerner, from revealing the contents of the pre-sentence report. That order was affirmed by the Second Circuit in 2011 and Oberlander’s petition for certiorari was denied last month.
While the certiorari petition was pending, a federal judge in Brooklyn ordered the U.S. Attorney’s Office in Syracuse to investigate whether Oberlander and Lerner should be held in criminal contempt. On Friday, April 26, the Northern District office asked that its time to file a report on the investigation be extended.
Two distinguished experts in journalistic ethics differ sharply over the propriety of the upcoming six-hour series to be aired on CBS about Brooklyn District Attorney Charles J. Hynes and his office as he is in the midst of a fierce battle to win a seventh term.
A national network’s allocation of such an extensive amount of airtime to an incumbent in close proximity to an election raises many troubling questions: Is it fair to the challengers? More fundamentally, does it skew the democratic process? The fairness doctrine died a long time ago, but should powerful media organizations exercise self-restraint in such situations? Should the decision to run with such a series rest within the sole discretion of the network? Should there be industry norms setting limits or guidelines as to the exercise of that discretion? Would such norms or limits constitute impermissible self-censorship?
Stephen B. Shepard, the founding dean of the graduate journalism program at City University of New York, pointedly questioned the wisdom of CBS’ airing the series. “They have a right to do it,” said Shepard, who was editor-in-chief of Business Week for more than 20 years, but the airing of the show runs the risk of “glorifying [Hynes] before an election.” For a network to devote six hours of coverage on a single candidate before an election is “totally out of the ordinary when is the last time you heard of a network doing [that].”
Richard C. Wald, a former senior vice president of ABC News, the question of whether to broadcast the series is “more a matter of taste or how-do-look-to-my-audience than a matter of ethics.” Wald, who holds a prestigious professorship at the Columbia University Graduate School of Journalism, said if “voters deserve to know the bad stuff” about a candidate before an election, “why not the good stuff?” Wald is the Fred W. Friendly professor of professional practice in media and society. Friendly was a pioneer in the development of broadcast news and worked closely with Edward R. Murrow and subsequently became president of CBS News.
CBS, through a spokesperson, declined to weigh in on the debate. Instead, in a statement, it advised that “CBS News does not publicly discuss its editorial process.”
WHICH VIEW DO YOU THINK IS RIGHT? VOTE IN POLL AT END OF ARTICLE.
When CBS announced the series in late March, it issued a press release vowing that the series would take a “tough, candid look” at the work of the prosecutors in the office. The release also described the office’s lawyers as “hard charging prosecutors, who are “living the lives that Hollywood loves to write about. Their stories are raw and emotional.” The release also contains a quotation from its executive producer, Susan Zirinsky, which reads, “What makes this series so unique is getting into the lives and personalities of the individual DAs, led by Charles “Joe” Hynes.” Click here to read CBS release.
The series, which is titled “Brooklyn D.A.”, will air at 10 p.m. for six consecutive Tuesdays from May 28 through July 2. The Democratic primary will be held on Sept. 10.
The series will be produced by the same team of producers who put together “48 Hours,” also an hour-long show which focuses upon the investigation and prosecution of a single crime each week. At the outset of each “48 hours” episode this tagline scrolls across the screen: “Real people… Real crimes… Real life drama.” The producers of “48 Hours” are a part of CBS’ news division.
Political Context
Hynes’ tenure as district attorney had been marked by some spectacular successes. One of the most spectacular—the 2007 conviction of Brooklyn Justice Gerald P. Garson for bribery—comes with video evidence, tailor-made for TV. Garson was captured on video coaching a lawyer how to handle a case that the judge was presiding over. A camera, which investigators placed in the ceiling of his robing room, records Garson telling the lawyer that his client would win though “he doesn’t deserve it.”
But, the office has also been the subject of sharp criticism. Last May, The New York Times ran an article reporting that the office yielded to requests from politically powerful ultra-Orthodox Hassidic rabbis that they be permitted to handle child molestation cases within their community.
More recently federal judges have had harsh words for the office’s handling of two murder cases. One federal judge in Brooklyn, writing that a murder case had been “rotten from day one” ordered the release of an inmate who had been in prison for 23 years. A second judge, during oral argument, questioned why Hynes had not disciplined one of Hynes’ top lieutenants for the way he handled a murder prosecution. That inmate had been incarcerated for 16 years before the office agreed to his unconditional release.
Hynes has recently taken moves that could blunt criticisms that the office has been overzealous in some of its prosecutions and unwilling to admit error when problems are called to its attention. Last month, Hynes agreed to the release of an inmate who had served 23 years in prison for the murder of an Orthodox rabbi during a diamond heist in 1990. Hynes acted upon the recommendation of a Conviction Integrity Unit, formed at the end of 2011, which discovered during a yearlong re-investigation that an eyewitness to the heist was now saying that a detective had coached him to pick the inmate out of a lineup.
Similarly, with respect to the claim that Hynes has been too cozy with powerful Brooklyn rabbis, the office in January obtained its first child-molestation conviction against a member of the ultra-orthodox Satmar sect since he took office in 1990.
Meanwhile, Hynes, 77, faces a tough re-election fight. Two well-funded opponents are challenging him: Kenneth P. Thompson, 46, a former federal prosecutor in Brooklyn, who delivered the opening statement in the trial of the police officer who was convicted of sodomizing Haitian immigrant Abner Louima with a broken broomstick, and Abraham George, 33, a former Manhattan prosecutor, who spearheaded a year-long investigation while assigned to the citywide Special Narcotics Office, which dismantled a narcotics operation that had terrorized residents of the city housing project in the Brownsville section of Brooklyn. George was with the Manhattan District Attorney’s Office for eight years before he resigned last summer to challenge Hynes.
Both challengers have vulnerabilities. Thompson represented the hotel maid who pressed rape charges against Dominique Strauss-Kahn, the former head of the International Monetary Fund—a case that collapsed after the Manhattan District Attorney’s Office uncovered information that raised doubts about her credibility. Thompson did secure a monetary settlement for the maid, Nafissatou Diallo. The amount of the settlement was not disclosed.
George, prior to his entry to the race, had a thin list of accomplishments at the Manhattan office he could boast about.
In a borough where the white population is a shade less than 50 percent, Hynes has had a tough time against minority opponents. Though he faced no opposition four years ago, in 2005 he squeaked by a black state senator with two other white candidates in the race and, in 2001, a political unknown was able to claim 36 percent of the vote. Thompson is black, and George’s parents are immigrants from India.
Other Experts Weigh In
Merrill Brown, the director of the communications and media program at Montclair State College, said that to devote “six hours of coverage [to the incumbent] in the midst of a hot election race is wrong.”
“As a matter of simple fairness and equity,” added Brown, a network should avoid such a concentration of coverage on a single candidate raising the possibility that the candidate will be portrayed as the “most dedicated prosecutor in New York City.”
Kelly McBride, an ethics professor at Poynter Institute, said, after reading CBS’ press release, “I wonder if it is appropriate to put such emphasis on entertainment value in a news story.” The Poynter Institute, which is located in St. Petersburg, Fla., provides continuing legal education for journalists.
Al Tompkins, also a professor at Poynter, whose field is broadcast news, did not share McBride’s concerns, saying, “I have no doubt that [any program produced by the CBS news division] will not be a PR machine.” Additionally, he said, “the series may provide fodder for [Hynes’] opponents.”
Like McBride, Shepard, the dean of CUNY journalism school, expressed concern that the series could veer in the direction of entertainment in an effort to “gain viewership.” To be “fair-minded,” he added, the series should reflect the reality of the situation and contain substantive coverage of the election, including the totality of the criticism of the district attorney.”
Wald did not see anything inherently wrong in the personality-driven approach described in CBS’ press release. He did note, in his email responding to the issues I flagged in my request for an interview, that he would presume that a network “would NOT” [Wald’s emphasis] air a laudatory program on the night before an election “unless it were truly vital.”
Beyond that, he wrote, if such a program were to be broadcast “months” before an election, the question of whether to go ahead would be “a matter of choice, of taste, of appearance as to how long before an election such a thing is allowable or sensible.” But, he added, such a decision is not an ethical call but one “that is open to the judgment of the broadcaster.”
So, who had the better side of the argument? Though I am decidedly not an expert in journalistic ethics, I am going to be presumptuous enough to throw in my two cents. I agree with Shepard because I think that six hours of what looks like it will be personality- and ratings-driven television carries too great a risk of casting Hynes in a highly favorable light and possibly tilting the playing field toward Hynes, who already has the advantage of being able to attract coverage by exercising the powers of his office—as he did in deciding to release the prisoner who had been identified by a witness, who now claims to have been coached.
The lens, through which the show examines the office, is that of the foot soldiers on the ground handling difficult, sometimes sensational, cases fraught with difficulties. As Zirinsky, the series executive producer put it in CBS’ press release, viewers will get to see the prosecutors’ “successes and failures—it’s immediate, compelling and heart breaking.”
It is difficult to see how the hard work and dedication of the office’s prosecutors, many of whom are in their thirties and forties, will not rub off favorably on Hynes. And six hours is a LOT of airtime. Edward R. Murrow and Fred Friendly’s seminal 1960 expose on the plight of migrant workers ran in one installment, 55 minutes long.
